Citation Nr: 9825464
Decision Date: 08/25/98 Archive Date: 07/27/01
DOCKET NO. 96-23 395A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased rating for low back strain with
lumbosacral stenosis, and degenerative and discogenic
changes, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James A. Pritchett, Associate Counsel
INTRODUCTION
The veteran retired in August 1980 with more than 26 years
active service.
This appeal arises from a January 1996 decision by the
Cleveland, Ohio, Department of Veterans Affairs (VA) Regional
Office (RO) that granted a 20 percent evaluation for the
veteran's service-connected low back disability, effective
from January 1994. The veteran disagreed with the rating
assigned, and this appeal ensued.
CONTENTIONS OF APPELLANT ON APPEAL
It is essentially contended that the veteran's low back
disorder is more disabling than currently evaluated because
he has constant pain, disc space narrowing and limitation of
motion of his lumbar spine.
DECISION OF THE BOARD
The Board of Veterans' Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1998), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the evidence warrants a 40 percent evaluation for
the veteran's low back strain with lumbosacral stenosis, and
degenerative and discogenic changes.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The service-connected low back disability is manifested
by marked limitation of lateral motion with osteoarthritic
changes, joint space irregularities and narrowing, and
evidence of pain on all movements of the lumbar spine, with
excruciating pain on left lateral movement.
CONCLUSION OF LAW
The criteria for a 40 percent evaluation for low back strain
with lumbosacral stenosis, and degenerative and discogenic
changes, have been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.7, 4.71a, Codes 5292, 5293, 5295
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A veteran's assertion of an increase in severity of a service
connection disorder constitutes a well-grounded claim
requiring that the VA fulfill the statutorily required duty
to assist found in 38 U.S.C.A. § 5107(a) because it is a new
claim and not a reopened claim. Proscelle v. Derwinski, 2
Vet. App. 629, 632 (1992).
Disability evaluations are determined by the application of a
schedule of rating which is based on the average impairment
of earning capacity in civil occupations. Separate
diagnostic codes identify the various disabilities. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as
to which of two evaluations shall be assigned, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons used to
support the conclusion. Schafrath v. Derwinski, 1 Vet. App.
589 (1991). These regulations include 38 C.F.R. § 4.1
(1997), which requires that each disability be viewed in
relation to its history and that there be an emphasis placed
upon the limitation of activity imposed by the disabling
condition, and 38 C.F.R. § 4.2 (1997), which requires that
medical reports be interpreted in light of the whole recorded
history and that each disability must be considered from the
point of view of the veteran working or seeking work. In
cases of functional impairment, 38 C.F.R. § 4.10 (1997)
requires medical evaluations to be based upon lack of
usefulness, and medical examiners to furnish a full
description of the effects of the disability upon a person's
ordinary activity, in addition to etiological, anatomical,
pathological, laboratory, and prognostic data which are
ordinarily required for medical classification. This
evaluation includes functional disability due to pain under
the provisions of 38 C.F.R. § 4.40 (1997). Functional
impairment due to pain on flare-ups or as a result of excess
fatigability must also be considered. See DeLuca v. Brown, 8
Vet. App. 202 (1995).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a
rating specialist is directed to review the recorded history
of a disability in order to make a more accurate evaluation,
see 38 C.F.R. § 4.2, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. at 58.
Factual Background
Service connection was established for chronic low back
strain by a rating decision dated in January 1981. A 10
percent evaluation was established by the same decision,
effective from separation. A January 1996 rating decision
reclassified the service-connected disability, in accordance
with recent examination findings, as low back strain with
lumbosacral stenosis; degenerative and discogenic changes,
and increased the evaluation to the current 20 percent.
A January 1994 computerized tomography (CT) scan report from
Wright-Patterson Air Force Base (Wright-Patterson) states
that extensive degenerative changes were observed at all
three levels of the veteran's spine that were visualized:
L3-4, L4-5, and L5-S1. A large asymmetric, primarily left
sided disc bulge was present at L3-4. A large disc bulge was
present at L5-S1. This appeared to be compressing the
exiting nerve root on the left which would represent L4.
Extensive degenerative disease of the facet joints with
vacuum phenomenon was also noted at that level. Extensive
degenerative changes were observed at L5-S1. The impressions
were extensive degenerative changes throughout the lumbar
spine, vacuum disc phenomenon with asymmetric disc bulge at
L3-4, vacuum disc phenomenon with symmetric disc bulging
resulting in possible compression of the exiting nerve root
on the left at L4-5, and no focal herniated nucleus pulposus.
A lumbar spine series at Wright-Patterson in January 1994
visualized lumbar scoliosis convexity to the right apex of
L2-3. This was associated with moderate to severe
degenerative changes at L2-3, including spur formation
particularly in the left lateral aspect. There was marked
disc height loss, end plate sclerosis and vacuum phenomenon
at L5-S1, with more moderate disc height loss and end plate
sclerosis at L4 and L1-2.
A February 1994 magnetic resonance imaging spectroscopy (MRI)
report from Wright-Patterson states that the veteran had
scoliosis and significant spondylosis at all levels with
lateral marginal osteophyte formation. There was narrowing
of multiple disc spaces. There appeared to be spinal
stenosis due to facet joint hypertrophy at L4-5. There was
also bulging of the disc with a clear area of focality into
the left paramedian location which was superimposed upon bi-
foraminal stenosis. The nerve root on the left exiting at
L4-5 was likely to be compressed, but clinical correlation
regarding the functional effect was needed. Spondylosis
causing bi-foraminal encroachment without obvious herniation
of the disc was present at L5-S1. The impressions were
severe spondylosis at multiple levels; a combination of
bulging disc, facet joint hypertrophy and possible small
focal herniation in the left paramedian location causing
spinal stenosis and bi-foraminal encroachment of which the
left was extremely narrow at L4-L5; and bi-foraminal
encroachment at L5-S1 due to spur formation.
The report of a VA orthopedic examination dated in April 1996
states that the veteran had no pain on palpation of the
spinous processes. Scoliosis was noted but atrophy was not.
His muscle tone was normal and his strength was 5/5 in all
muscle groups of the lower extremities. The sensory
examination was normal to light touch, pinprick and
vibrations. The Romberg sign was negative. His gait was
brisk with good ability to walk on his heels and toes. His
tandem walk was intact. He complained of some antalgia when
walking long distances. His reflexes were 2+ at the knees
with reinforcement and zero at the ankles with reinforcement.
His plantar response was downgoing. The examiner's
impression was low back pain without radiculopathy.
During the veteran's personal hearing in April 1997, he
testified that a back problem was diagnosed in about 1958 and
that he had acute episodes with his back through the years.
Since his retirement, he has been treated at Wright-Patterson
Air Force Base. He has been examined but not treated by VA.
He felt that the VA examinations did not accurately portray
his disability. The examination reports contained gross
errors both in the description of reports from Wright-
Patterson and in setting out what he had told the VA
examiners.
The veteran testified that slight pain is continuous, but
severe pain is intermittent; it depends on what he does. He
does get intense pain. He testified that he does stretching
exercises every day. He goes to Wright-Patterson on an
intermittent basis. He has had one injection, but it did not
do much. The physician therefore did not recommend further
injections. He stated that extreme forward bending as well
as extreme backward bending and twisting cause the most pain.
Walking on concrete can be painful.
The neurosurgeon at Wright-Patterson gave him a biodex test,
which is a bicycle that measures leg strength. His left, or
involved, quadriceps measured about 20 percent less than his
uninvolved leg. He felt that since he has always used his
left leg for kicking and accelerating, the real result is
that degradation of strength was greater than what was
measured. He felt that his left leg had stronger hamstring
muscles and weaker quadriceps. He felt that is left leg is
actually 30 percent weaker than the right.
The veteran testified that the neurosurgeon noted his
scoliosis. He told the veteran that surgery was not
indicated because it would mean putting a symmetrical disc
into an unsymmetrical spine. He testified that he is not
employed but does remodeling on five houses, although lately
he hires out most of the work. His hobby is gardening, but
he has not done it much lately.
The report of a VA orthopedic examination dated in November
1997 states that the available medical records were reviewed.
It was reported that the veteran's treatment consisted of
rest and taking over-the-counter medications. He complained
of fairly constant pain but denied flare-ups. He also denied
the need for crutches or braces. There has been no surgery.
On examination, the veteran's spine was painful throughout
the entire arc of motion, especially with left lateral
movement, as noted by facial grimacing. The musculature of
his back was well developed, and no postural abnormalities or
fixed deformities were observed. The straight leg raising
test was negative bilaterally. Forward flexion of the lumbar
spine was to 90 degrees, backward extension was to 19
degrees, left lateral bending was to 16 degrees with
excruciating pain, and right lateral bending was to 20
degrees. Left rotation was to 12 degrees and right rotation
was to 10 degrees. X-rays revealed osteopenia with scoliosis
of the lumbar spine and degenerative changes. Retrolisthesis
of L3 over L4, L2 over L3 and L1 over L2 was observed.
The report notes that the MRI of 1994 from Wright-Patterson
revealed severe spondylosis at multiple levels, hypertrophy
and possible small focal herniation in the left paramedian
location causing spinal stenosis and bi-foraminal
encroachment of which the left was extremely narrow, bi-
foraminal encroachment was also present at L5-S1 due to spur
formation. Lumbar spine X-rays from Wright-Patterson in 1994
revealed lumbar scoliosis with moderate to severe
degenerative changes as well as discogenic degenerative
changes.
The examiner's diagnoses were osteopenia of the lumbar spine,
scoliosis of the lumbar spine, L4-5 disc herniation, and
facet joint hypertrophy of the lumbar spine.
The report of a VA neurological examination dated in November
1997 states that the veteran's spine was unremarkable and
without knocking tenderness. The straight leg raising test
was negative. His muscle bulk was symmetrical in both legs.
The motor strength in all muscles of the lower limbs was
normal. The knee jerk was present and symmetrical. The
ankle jerk was slightly depressed on the right compared to
the left. Pin prick, vibration and position senses were
entirely normal. The assessment was chronic low back pain
syndrome with no evidence of radiculopathy. The examiner
stated that it was an essentially negative neurological
examination.
In a letter dated in April 1998, the veteran stated that
neurosurgeons at Wright-Patterson had documented his
limitation of forward bending, loss of lateral movement, the
collapse of two discs, bone spurs, osteoarthritis with
related stenosis and marked scoliosis. He also stated that
the medical personnel at Wright-Patterson were superior to
the physicians at VA and that the Wright-Patterson diagnoses
were supported by X-rays, CT scans and MRIs. He also noted
that, contrary to the latest supplemental statement of the
case, he does not hire himself out to do remodeling and
repairs and that his only exercise is stretching his
hamstrings. He added that he experienced continuous light to
moderate pain and intermittent severe pain.
Analysis
Under the rating schedule, limitation of motion of the lumbar
spine is rated as 20 percent disabling when it is moderate
and at 40 percent when it is severe. 38 C.F.R. § 4.71a, Part
4, Code 5292.
Under Code 5293, a 20 percent evaluation is warranted for
moderate intervertebral disc syndrome with recurring attacks.
A 40 percent evaluation requires severe intervertebral disc
syndrome with recurring attacks with intermittent relief. A
60 percent evaluation requires pronounced intervertebral disc
syndrome with persistent symptoms compatible with sciatic
neuropathy (i.e., with characteristic pain and demonstrable
muscle spasm and an absent ankle jerk or other neurological
findings appropriate to the site of the diseased disc) and
little intermittent relief. 38 C.F.R. § 4.71a, Code 5293.
Under Code 5295, a 20 percent evaluation is warranted for
lumbosacral strain where there is muscle spasm on extreme
forward bending and unilateral loss of lateral spine motion
in a standing position. A 40 percent evaluation requires
severe lumbosacral strain with listing of the whole spine to
the opposite side, a positive Goldthwait's sign, marked
limitation of forward bending in a standing position, loss of
lateral motion with osteoarthritic changes, or narrowing or
irregularity of the joint space. A 40 percent evaluation is
also warranted if only some of these manifestations are
present if there is also abnormal mobility on forced motion.
38 C.F.R. § 4.71a, Code 5295. The 40 percent evaluation is
the highest schedular evaluation available under Code 5295.
The November 1997 VA examination, which was undertaken after
a review of all the available medical records, showed that
the veteran's lateral bending was only to 16 degrees on the
left with excruciating pain. His right lateral bending was
only to 20 degrees. His rotation was to 12 degrees on the
left and to 10 degrees on the right. The examiner noted that
there was pain throughout the entire arc of motion in all
planes of excursion, especially on left lateral movement.
The MRI and X-ray reports from Wright-Patterson demonstrate
lumbar scoliosis with moderate to severe degenerative
changes. Severe spondylosis was noted at multiple levels.
The record demonstrates that the veteran's lateral motion of
the lumbar spine is markedly limited and that the little
lateral movement he does have is accompanied by excruciating
pain. Osteoarthritic changes and irregularity and narrowing
of the joint spaces have been visualized at multiple levels
of the lumbosacral spine. Although the veteran has nearly
full forward flexion, his range of lumbar spine motion is
severely limited in all other planes of excursion if the
factor of pain on motion is considered. See DeLuca.
The Board is thus persuaded that the veteran's service-
connected low back disability, as presently manifested, more
nearly approximates, in accordance with the provisions of 38
C.F.R. § 4.7, the criteria for a 40 percent rating under Code
5295. The Board has considered Diagnostic Code 5293.
However, the most recent VA neurological examination was
essentially negative. There was no evidence of symptoms
compatible with sciatic neuropathy, demonstrable muscle
spasm, absent ankle jerk or other neurological findings
required for a 60 percent rating under Diagnostic Code 5293.
Therefore, a 60 percent rating is clearly not in order under
that diagnostic code. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §
4.71a, Code 5293.
ORDER
A 40 percent evaluation is granted for low back strain with
lumbosacral stenosis, and degenerative and discogenic
changes, subject to controlling regulations governing the
payment of monetary awards.
WILLIAM W. BERG
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.